Weekly Case Summaries: June 24, 2016

United States Supreme Court

Utah v. Strieff

No. 14-1373 6/20/2016

Issue:

Does the attenuation doctrine apply when an officer makes an unconstitutional investigatory stop, learns during that stop that the suspect is subject to a valid arrest warrant, and then arrests the subject and seizes incriminating evidence during a search incident to that arrest?

Holding:

Yes. The Court rules the presence of a valid arrest warrant is an “extraordinary intervening circumstance” that breaks the causal chain between the unconstitutional stop and the evidence found. Additionally, this was a legitimate investigation and the officer showed no signs of flagrant misconduct. Read.

Dissent (Sotomayor, J.; Ginsberg, J.):

Justice Sotomayor dissented because she contended the officer obtained the evidence by exploiting his own constitutional violation; thus, the evidence should be excluded. The warrant should not constitute an “intervening circumstance” because it was part of the officer’s illegal search for evidence. With this ruling, the existence of a warrant not only gives an officer legal cause to arrest and search a person, but it also forgives an officer who, with no knowledge of the warrant, unlawfully stops that person on a whim or hunch. Justice Sotomayor also disagreed that this conduct was “isolated” and worries about the large number of backlogged warrants across the country that may now be used to justify suspicionless police stops. Read.

Dissent (Kagan, J.; Ginsberg, J.):

The majority opinion failed to appropriately apply the facts to the decision in Brown v. Illinois, 422 U.S. 590, 604-605 (1975). This misapplication will result in incentives for the police to make unlawful stops on the large number of citizens who have warrants and be rewarded for it. This decision will only increase an officer’s incentive to violate the Constitution. Read.

Commentary:

As much as the dissenting opinions and some in the media might criticize this decision, it is entirely in line with the Court’s precedents. It is also already very much the law in Texas. See State v. Mazuca, 375 S.W.3d 294 (Tex. Crim. App. 2012); Wehrenberg v. State, 416 S.W.3d 458 (Tex. Crim. App. 2013). And lest you think that it is now open season for law enforcement officers to stop anybody they want on a “whim,” that would almost certainly void all of the officer’s conduct based upon the third prong of the test under Brown v. Illinois.

TDCAA News

Court of Criminal Appeals

Ex parte McDonald

Issue:

Was the defendant’s plea of “true” to the State’s motion to adjudicate in a forgery case involuntary because the motion to adjudicate was based upon a previously invalidated assault?

Holding:

Yes. The defendant was able to show that he would not have pleaded “true” to the motion to adjudicate in the forgery case and maximum punishment if he had known at the time that the assault charge was invalid. Part of his consideration for pleading “true” in the forgery case was that his punishment would be subsumed under the assault sentence. Read.

Concurrence & Dissent (Richardson, J.):

Judge Richardson agreed with the majority that habeas relief should be granted; however, he would remand the case for the defendant to answer to the original forgery allegations, not the allegations in the motion to adjudicate guilt. He believes the defendant must be returned to his original position—before any plea agreement was made—not just before his guilt was adjudicated after a deferred adjudication community supervision plea agreement. Read.

Commentary:

The reason that Judge Richardson’s position did not prevail in this case is because the majority held that the defendant did not prove that his original plea of guilty in the forgery case was involuntary, but that he had only proved that his plea of “true” to the subsequent motion to adjudicate was involuntary. These decisions are entirely bound by the particular facts of this case and probably have little or no precedential value.

Ex parte McCuin

Nos. WR-82,096-01, WR-82,096-02 & WR-82, 096-03 6/22/16

Issue:

Is a defendant entitled to habeas corpus relief from an illegal sentence when his habeas claim alleges only ineffective assistance of trial counsel?

Holding (per curiam):

No. Because the Court found no evidence of ineffective assistance of trial counsel, it denies the habeas claim, even though the sentence as ordered is illegal. Read.

Dissent (Alcala, J.):

Judge Alcala dissented and would remand this case to appoint appellate counsel for the pro se defendant. She would allow appointed counsel to amend the pleadings to reflect an ineffective assistance of appellate counsel claim since previous appellate counsel did not challenge the illegal sentence on direct appeal. Read.

Dissent (Johnson, J.):

Judge Johnson dissented. Because illegal sentences can be challenged at any time, she would reform the judgment as necessary to make the sentence legal. Read.

Commentary:

This case represents the latest in a growing line of cases revealing a dispute among the members of the court over how it should deal with applications for post-conviction writs of habeas corpus filed by pro se defendants. Such applications are often incorrectly filed and could be easily corrected by appointed habeas counsel—hence, the dispute that can be more fully explored in several opinions authored by Judge Yeary on one side of the dispute and several opinions authored by Judge Alcala on the other side. The dispute is actually quite compelling but probably only to post-conviction attorneys. For the moment, Judge Yeary’s position is largely prevailing, but stay tuned to the next session of the Texas Legislature to see if that changes. Judge Johnson’s position is correct, but apparently it was not chosen by the majority because the defendant did not raise an illegal sentence claim, although that is not entirely clear from the majority per curiam opinion.

Duran v. State

No. PD-0429-15 6/22/2016

Issue:

When the State abandons one of two convictions prior to the punishment phase to avoid a possible Double Jeopardy issue: 1) can the trial court nonetheless include that conviction in the judgment, and 2) can the trial court rely on the jury verdict in the abandoned conviction to support a deadly-weapon finding?

Holding:

No and no. In this case, the State indicted the defendant for burglary and aggravated assault, and the jury convicted the defendant of both charges. However, the State abandoned the aggravated assault conviction before the punishment phase to avoid a possible Double Jeopardy issue because the two offenses arose from the same set of facts. The Court concluded that the judgment may not include a conviction for an abandoned allegation. On the deadly weapon issue, the Court held that finding the defendant guilty of burglary did not amount to making an affirmative deadly weapon finding, and the judge may not rely on the jury’s finding of guilt in the abandoned aggravated assault case to make a deadly weapon finding. Read.

Concurrence (Richardson, J.; Johnson, J.):

“Once the State abandoned Count II, it was an acquittal on the count. Count II cannot be resurrected to support a deadly-weapon finding because it no longer exists as a viable charge or valid conviction.” Read.

Concurrence/Dissent (Yeary, J.; Keasler, J.):

Rejecting the State’s argument that a deadly weapon finding may still be predicated on the abandoned jury verdict was improper. The Court of Appeals did not rule specifically on this issue and should have the opportunity to address it. Read.

Commentary:

The procedural facts of this case are quite messy, and it is doubtful that such a fact situation would recur on a regular basis. As such, you should not have to see this decision cited too much in the future. The bottom line: If you want to make sure that your fact finder will be held to have made a deadly weapon finding, then make sure that your fact finder expressly does so.

TDCAA News

Courts of Appeals

Edwards v. State (1st COA)

No. 01-15-00416-CR 6/16/2016

Issue:

Was the evidence sufficient to show aggravated robbery even though no witness testified that the defendant attempted to take his or her property?

Holding:

Yes. While no witness testified that the defendant demanded any money, intent is often proved by circumstantial evidence. The fact that large sums of money were present, along with the text messages from the defendant’s phone that discussed money and an “escape route,” was enough for a jury to assume intent to commit a theft. Read.

Concurrence (Jennings, J.):

Justice Jennings concurred in the court’s judgment but contended that the court should have conducted a factual-sufficiency review, not just a legal-sufficiency review of the evidence. Read.

Commentary:

This has got to be one of the unluckiest defendants. Who leaves his cell phone laying out in the open for someone (an officer) to pick up? And the contents of the cell phone, particularly text messages, were used very well to help convict him. A great job by the State in circumstantially proving its case against the defendant.

Kuhl v. State (6th COA)

No. 06-15-00188-CR 6/16/2016

Issue:

Is §20A.02(a)(7)(C) of the Penal Code unconstitutionally overbroad and vague?

Holding:

No. For a defendant to show that a statute is unconstitutionally overbroad, the statute must “reach a substantial amount of constitutionally protected conduct.” In this case, the defendant argued that the language of the human trafficking statute is overly broad and vague because it may, in some instances, also prohibit legal conduct. The Court rejected the argument, however, finding that the defendant had failed to argue that any constitutionally protected conduct was implicated and noting that when the defendant engages in conduct clearly proscribed by the statute, he cannot complain of the vagueness of the law when applied to others. Read.

Commentary:

This decision is very brief, but it could be useful if a defendant attempts to challenge the constitutionality of this statute or a similar one.

Ex Parte Salazar (8th COA)

No. 08-14-00243-CR 6/15/2016

Issue:

Is a trial court required to hold an evidentiary hearing when the defendant raises an actual innocence claim in a habeas corpus petition?

Holding:

In this case, yes. The defendant’s actual innocence claim involves new, exculpatory evidence from a witness who had given conflicting accounts of the events in the past. Through a hearing, the trial judge can make a credibility determination and clarify the record. Although a hearing is not required in every actual innocence case, under these circumstances an evidentiary hearing is appropriate. Read.

Commentary:

Much of the caselaw construing Article 11.072 has been developed by the intermediate courts of appeals, and it seems a good time for the Court of Criminal Appeals to review the statute, especially because the court of appeals in this case has held that an evidentiary hearing is required, even though the statute does not require one. But as a practical matter, an evidentiary hearing could provide a stronger foundation for the trial court to find that a subsequent recantation by a child victim or witness is not credible.

Avellaneda v. State (14th COA)

No. 14-14-00509-CR 6/16/2016

Issue:

Is injury to a child by omission a lesser-included offense to felony murder?

Holding:

No. An offense is a lesser-included offense if it is “established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Felony murder occurs when, attempting or committing a felony, a defendant commits an act dangerous to human life that results in a death. However, an omission cannot be an affirmative act. Therefore, the proof needed to establish the offense of injury to a child by omission is not included within the proof necessary to establish the charged offense of felony murder. Read.

Commentary:

The courts have now made it abundantly clear that injury to a child by omission (or any felony committed by omission) cannot be the basis for a felony murder charge because the former charge requires an “act” clearly dangerous to human life. This is a good to decision to remember that fact or to show to a trial judge if he is considering giving a jury instruction on such a lesser-included offense.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]